Older Applicant Denied Job Interview Has No Discrimination Claim

By Jeffrey Rhodes February 2, 2021
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a pipefitter sawing a pipe

A 71-year-old applicant for a pipefitter job could not show age discrimination by the company that rejected him for an interview based on poor references by two former co-workers and purported lack of qualifications, the 6th U.S. Circuit Court of Appeals ruled.

The plaintiff worked as a pipefitter and welder for roughly 30 years at Graphic Packaging before retiring in 2013. A few years later, an employee at WestRock, a corrugated packaging company, told the plaintiff that the company was looking for pipefitters. WestRock's online application for a "journeyman pipefitter" position included a section titled "required skills and experience," which included welding, and study of building plans and working drawings. Under "additional requirements," WestRock instructed that the applicant "[m]ust be able to read blueprints." The application did not ask for a date of birth.

The plaintiff applied for the position. A WestRock HR professional thought the plaintiff looked generally qualified and forwarded the application to a team lead and a supervisor for their feedback.

The team lead had worked with the plaintiff at Graphic Packaging and felt that the plaintiff demonstrated a poor work ethic. He recalled a specific incident where the plaintiff chose to sit on a bucket to pass time instead of completing a pending project. The WestRock supervisor then reached out to a friend who had also worked with the plaintiff at Graphic Packaging. That former co-worker told the supervisor to "stay away" from hiring the plaintiff, an observation the supervisor relayed to HR.

Having received two negative references, the HR professional decided to reject the plaintiff's application. She declined the application through an online portal. An automated response informed the plaintiff that WestRock "decided to move forward with other applicants who more closely match the desired requirements and qualifications for the role."

After being rejected by WestRock, the plaintiff heard that a younger, less experienced worker was hired for the job. The plaintiff sued WestRock for age discrimination in violation of the Age Discrimination in Employment Act. In his complaint, the plaintiff alleged that he was qualified for the journeyman pipefitter position, and that had it not been for his age, WestRock would have hired him.

A pivotal issue during the ensuing litigation was whether the plaintiff met the stated job requirements. The plaintiff admitted that he did not know how to read building blueprints, nor did he have experience with selecting the type and size of pipe. He further admitted that just a couple of years earlier, he'd refused to get certified for certain welding activities because he "didn't want to be a welder anyway."

The district court granted WestRock's motion for summary judgment. The court found that the plaintiff was not otherwise qualified for the position given his inability to read blueprints or select pipes and his unwillingness to weld. The plaintiff failed to show that WestRock's reasons for not hiring him were false.

On appeal, the 6th Circuit found that the plaintiff could not show that he was qualified for the position, even though the HR employee had initially thought he was. The appeals court also found that the qualifications required for the position were not a pretext for discrimination because they were chosen before the plaintiff applied.

The 6th Circuit considered the plaintiff's claims of pretext. He claimed that the automated rejection response he received showed pretext because it was untrue. WestRock had not yet "decided to move forward with other applicants" when it was sent. But the 6th Circuit found that a generic response did not show pretext so much as a reluctance to offend unsuccessful applicants.

The plaintiff also claimed that the poor references he received resulted from discrimination. However, the court found that WestRock did not have to investigate whether an outside reference stemmed from bias.

As a result, the 6th Circuit upheld the dismissal of the plaintiff's claims.

Flowers v. WestRock Services Inc., 6th Cir., No. 20-1230 (Nov. 12, 2020).

Professional Pointer: Employers should make sure to have standard application processes in place to screen out unqualified candidates while limiting the likelihood of subjective—and possibly discriminatory—motives influencing selection decisions.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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